Citation Nr: 1514209
Decision Date: 04/02/15 Archive Date: 04/09/15
DOCKET NO. 13-12 036 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to service connection for a right foot condition.
2. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a back condition.
3. Entitlement to service connection for a back condition, to include as secondary to a right foot condition.
4. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a left hip condition.
5. Entitlement to service connection for a left hip condition, to include as secondary to a right foot condition.
REPRESENTATION
Appellant represented by: Kenneth LaVan, Attorney
ATTORNEY FOR THE BOARD
W. R. Stephens, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1990 to December 1992.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.
The Veteran's claims for service connection for a back condition and a left hip condition were originally denied in a March 1993 rating decision. The Veteran did not perfect an appeal to this rating decision, and as a result it became final. The Veteran's claims were denied in subsequent rating decisions for failure to submit new and material evidence, including the August 2010 rating decision now on appeal. The most recent final rating decision denying the Veteran's claim for a back condition was in June 2006. The most recent final denial of the Veteran's left hip claim was January 1998.
The Veteran was scheduled for a December 2013 videoconference hearing but canceled the request. The Veteran has not indicated that she seeks to reschedule a hearing.
The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS system to ensure review of the totality of the evidence.
The issues of entitlement to service connection for a right foot condition, back condition, and left hip condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The June 2006 rating decision denying entitlement to service connection for a back condition is final.
2. Evidence received after the June 2006 final decision, with respect to entitlement to service connection for a back condition, includes evidence that is not cumulative or redundant of the evidence previously of record, addresses unestablished facts necessary to substantiate the claims, and raises the reasonable possibility of substantiating the claims.
3. The January 1998 rating decision denying entitlement to service connection for a left hip condition is final.
4. Evidence received after the January 1998 final decision, with respect to entitlement to service connection for a left hip condition, includes evidence that is not cumulative or redundant of the evidence previously of record, addresses unestablished facts necessary to substantiate the claims, and raises the reasonable possibility of substantiating the claims.
CONCLUSIONS OF LAW
1. The June 2006 rating decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002; 38 C.F.R. §§ 3.160(d), 20.1100, 20.1104 (2014).
2. New and material evidence has been received to reopen the claim for service connection for a back condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2014).
3. The January 1998 rating decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002; 38 C.F.R. §§ 3.160(d), 20.1100, 20.1104 (2014).
4. New and material evidence has been received to reopen the claim for service connection for a left hip condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Rating decisions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2014). An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200.
A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a final claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).
Back Condition
The June 2006 rating decision denied entitlement to service connection for a back condition due to the failure to submit new and material evidence. Service connection had previously been denied in a March 1993 rating decision because the evidence did not show that the Veteran's preexisting back condition had been aggravated by her military service.
The June 2006 rating decision was not appealed by the Veteran and as a result became final. Therefore, an unestablished fact necessary to substantiate this claim is competent evidence that the Veteran's preexisting back condition was aggravated by service.
The Veteran submitted a December 2013 opinion from a private physician suggesting that the Veteran's back condition was aggravated by service. As a result, it qualifies as new and material evidence sufficient to reopen the claim. Thus, the Board finds that new and material evidence has been submitted with respect to the Veteran's service connection claim for a back condition on appeal.
Left Hip Condition
The January 1998 rating decision denied entitlement to service connection for a left hip condition due to the failure to submit new and material evidence. Service connection had previously been denied in the March 1993 rating decision, in part because the Veteran did not have a current left hip disability as her prior bursitis had resolved. Evidence received since that denial includes records suggesting the presence of a current disability. This evidence of suggesting a current left hip disability would amount to competent evidence of an unestablished fact necessary to substantiate this claim. Thus, the Board finds that new and material evidence has been submitted with respect to the Veteran's service connection claim for a left hip condition on appeal.
ORDER
The previously denied claim of entitlement to service connection for a back condition is reopened on the basis of new and material evidence; to that extent only, the appeal is granted.
The previously denied claim of entitlement to service connection for a left hip condition is reopened on the basis of new and material evidence; to that extent only, the appeal is granted.
REMAND
As a preliminary matter, the Board notes that the record seems to indicate that there are outstanding VA treatment records that have not been associated with the file. As a result, these must be obtained and associated with the file upon remand. Additionally, the Board notes that special care should be taken when requesting the Veteran's VA treatment records, as it is apparent from the record that the Veteran has gone by at least two different last names, although the timeline for this change is unclear. The Veteran indicates that there may some confusion as to the name on her VA treatment records in an October 1998 statement. Additionally, the Veteran's claims file is currently labeled under a different last name than the Veteran has signed on submitted forms. As a result, the RO should clarify the dates regarding the Veteran's usage of each last name.
Right Foot
With respect to the Veteran's service connection claim for a right foot condition, the Board notes that flat feet were noted upon entrance. As a result, the presumption of soundness will not apply to any diagnosed flat feet, and service connection will only be warranted if the condition was aggravated by service. With respect to aggravation, the Board notes that a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002).
The Veteran has not been afforded a VA foot examination, and as a result of the evidence of record, the Board finds that one is warranted. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). The examiner should provide a diagnosis of any right foot disability and provide an appropriate opinion regarding the etiology of any such disability.
Back Condition
With regard to the Veteran's service connection claim for a back condition, the Board finds that clarification is necessary as to what back conditions the Veteran is currently diagnosed with, and which, if any, preexisted the Veteran's military service.
While the Board notes the private medical opinion submitted by the Veteran, the Board finds that clarification as to the Veteran's currently diagnosed back disabilities, whether such disabilities preexisted service, and an appropriate opinion regarding the etiology of any diagnosed disability is necessary for proper adjudication of the Veteran's claim. Additionally, the Veteran has claimed that her back condition is secondary to her right foot disability.
Left Hip Condition
Similarly, the Board finds that a VA examination with respect to the Veteran's claimed left hip condition is warranted in order to provide a specific diagnosis and an opinion regarding the etiology of any such diagnosed disability.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran requesting that she clarify the dates during which she has used different last names.
2. Send notice to the Veteran requesting that she identify any other relevant treatment that she has received or is receiving, and request that she forward any additional records to VA to associate with the claims file or provide VA with authorization to obtain such records.
If the Veteran is receiving regular VA treatment, obtain the updated medical records and associate them with the claims file.
Take special care while obtaining updated VA treatment records and search for records associated with all names used by the Veteran.
3. Schedule the Veteran for a VA examination to determine the etiology of any currently diagnosed right foot condition. The claims folder and a copy of this REMAND should be provided to the examiner for review in conjunction with the examination, and the examination report should reflect that such a review was conducted. The examiner must:
(a) Provide a specific diagnosis of any right foot disability.
Pes Planus: If pes planus (flat feet) is current shown,
please answer inquiries (b) and (c):
(b) Pes Planus: If the Veteran is diagnosed with pes planus of the right foot, the examiner should provide an opinion as to whether the disability underwent an increase in severity during service.
(c) If the pes planus underwent an increase in severity during service, was such increase due to the natural progress of the disease.
(For VA purposes, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened.)
Other Right Foot Disability: If the Veteran is diagnosed with a right foot disabilities other than pes planus, please answer inquiry (c), (d), and (e) as appropriate:
(c) Provide an opinion as to whether any other currently diagnosed right foot disability clearly and unmistakably (obviously or manifestly) existed prior to her active duty service.
(d) If any other diagnosed right foot condition did not clearly and unmistakably exist prior to her active duty service, provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the right foot disability originated during, or is etiologically related to, her active duty service.
(e) If another diagnosed right foot disability did clearly and unmistakably exist prior to her active duty service, provide an opinion as to whether such disorder clearly and unmistakably (obviously or manifestly) was not aggravated (increased in severity beyond the natural progression of the disability) during her active duty service.
If any tests or other diagnostic tools are deemed necessary by the examiner, they should be completed. The examiner's written report must be associated with the Veteran's VA claims folder.
The VA examiner must provide a thorough rationale for any opinion provided, as a matter of medical probability, based on the examiner's clinical experience, medical expertise, established medical principles, and the evidence of record. References should be made to pertinent documents of record, as necessary.
4. Schedule the Veteran for a VA examination to determine the etiology of any currently diagnosed back condition. The claims folder and a copy of this REMAND should be provided to the examiner for review in conjunction with the examination, and the examination report should reflect that such a review was conducted. The examiner must:
(a) Provide a specific diagnosis for any current back disability.
(b) Provide an opinion as to whether the Veteran's back condition(s) clearly and unmistakably (obviously or manifestly) existed prior to his active duty service.
Then address inquiry (c), (d) and/or (e) below, as appropriate:
c) If the Veteran's diagnosed back condition(s) did not clearly and unmistakably exist prior to her active duty service, provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the back condition(s) originated during, or is etiologically related to, her active duty service.
d) If the Veteran's back condition(s) did not clearly and unmistakably exist prior to her active duty service, whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any back condition(s) was caused by, or is aggravated by the Veteran's service-connected right foot condition.
If the Veteran's right foot condition aggravates (i.e., permanently worsens) a back disability, the examiner should identify the percentage of disability which is attributable to the aggravation. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).
e) If the Veteran's back condition(s) did clearly and unmistakably exist prior to his active duty service, provide an opinion as to whether such disorder(s) clearly and unmistakably (obviously or manifestly) was not aggravated (increased in severity beyond the natural progression of the disability) during her active duty service.
If any tests or other diagnostic tools are deemed necessary by the examiner, they should be completed. The examiner's written report must be associated with the Veteran's VA claims folder.
The VA examiner must provide a thorough rationale for any opinion provided, as a matter of medical probability, based on the examiner's clinical experience, medical expertise, established medical principles, and the evidence of record. References should be made to pertinent documents of record, as necessary. Specifically, the examiner should the address the December 2013 private medical opinion submitted by the Veteran.
5. Schedule the Veteran for a VA hip examination with an examiner of appropriate expertise. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the report.
Based on a review of the record, the examiner must:
(a) Provide a specific diagnosis for any left hip disability.
(b) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed left hip disability is causally or etiologically related to the Veteran's period of active service.
(c) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed left hip disability was caused by, or is aggravated by the Veteran's service-connected right foot condition.
If the Veteran's right foot condition aggravates (i.e., permanently worsens) a left hip disability, the examiner should identify the percentage of disability which is attributable to the aggravation. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).
If any tests or other diagnostic tools are deemed necessary by the examiner, they should be completed. The examiner's written report must be associated with the Veteran's VA claims folder.
The VA examiner must provide a thorough rationale for any opinion provided, as a matter of medical probability, based on the examiner's clinical experience, medical expertise, established medical principles, and the evidence of record. References should be made to pertinent documents of record, as necessary.
6. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998).
7. After undertaking any other development deemed appropriate, the RO will re-adjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs